Worker

Employer

Anonymised Parties

An Operator

A Manufacturer of medical devices

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00058652-002

04/09/2023

The worker referred this dispute to the WRC because he was dissatisfied with the way his complaint was being dealt with by his employer. The worker in this case also submitted a separate claim of discrimination and harassment on the grounds of Race under the Employment Equality Acts as well as a claim of victimisation contrary to Section74(2) of the Acts.  These are dealt with in a separate decision.  

It is noteworthy that the worker submitted his claims to the WRC on the 4th of September 2023 which was 7 weeks before the investigation of his complaint had been concluded by the employer.

The worker in his claim form submitted that he had a Trade dispute which he would like to have investigated.  In elaborating on his claim, the complainant submits that he has not received adequate support from his employer in relation to a complaint lodged him in respect of alleged racist comments which he alleged were made by his team leader about asylum seekers in his presence during a conversation between a group of colleagues in the employer’s canteen.

The claim arises out of an incident on 19th of July 2023 following a conversation between colleagues in the workplace canteen during which the worker alleges a colleague, Ms. H made racist remarks about asylum seekers.  The worker is not alleging that he is an asylum seeker or that the remarks were directed at him but submits that he found them offensive as a person of mixed-race origin as his father is of African descent.

The worker in his IR claims submitted that he had received no real support in this matter from his employer.  The worker submitted a complaint to his employer which he initially wanted dealt with via the informal process but which he later decided to pursue through the formal process.  The investigation was ongoing at the time of lodging his claim with the WRC.

The employer submits that the content of the IR complaint is materially the same as the claims submitted under the Employment Equality Acts and submits that the company has set out clearly the steps it took to manage the incident referred to in its defence of those claims.   The employer submits that it took immediate steps to deal with the allegations of harassment raised by the worker as soon as he notified them of the matter. 

The employer advised the hearing that initially the worker had sought to have matters resolved informally stating that he wanted an apology from Ms. H. The employer advised the hearing that it sought to facilitate this by meeting with both parties separately and then attempted to facilitate a joint meeting of the parties in the days following the incident in a bid to resolve matters as quickly as possible.  The employer stated that the worker did not accept the invitation to meet with Ms. H to resolve matters informally prior to the company’s 2 weeks scheduled holiday shut down and that he instead decided to pursue a formal complaint in respect of the matter.   The employer advised the hearing that they conducted a thorough investigation in accordance with their policies and that all parties involved, and witnesses were interviewed, and findings and recommendations made.

The employer advised the hearing that the worker lodged his formal complaint with the employer on the  23rd  of August 2023 but did not wait for the conclusion of the investigation before lodging his claims with the WRC.   

The employer stated that the claims were lodged with the WRC on the 4th of September and the employer’s investigation only concluded on the 25th of October 2023.  In addition, the employer advised that the worker was offered the opportunity to appeal investigation outcome, but he did not avail of the appeal.

The worker then resigned on the 3rd of November without availing of the appeal process.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the Parties.

The employer advised the hearing that the worker had not exhausted the internal procedures before submitting an IR claim and has lodged his claim with the WRC  before the conclusion of  the internal investigation.

The employer added that it had followed its policies and best practice in carrying out the investigation into the allegations of harassment made by the complainant.   The employer advised the hearing that the complainant was offered the chance to appeal the outcome of the investigation which he also failed to avail of, instead choosing to submit his resignation a few days later.

The employer submits that the worker had no interest in resolving the matter internally or in the outcome of the investigation as he had already submitted him claims to the WRC.

It is well established that, before submitting a grievance about any matter to the WRC, an employee

must exhaust the internal procedures at their workplace. In Gregory Geoghegan t/a TAPS v. A Worker, INT1014, the Labour Court held:

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

While I note that the internal investigation had not concluded at the time of lodging this claim I also note that it has since then concluded, and the worker has resigned his employment having declined to appeal the outcome of the matter.

In addition, the worker at the hearing of this claim sought to re-examine matters which were covered in the claims taken under the Employment Equality Act and on which a separate decision has issued.  He sought in particular to reiterate his arguments in respect of the employer’s failure to acceded to his request for a transfer to another Department away from his Team leader against whom he had made the allegations of harassment following his lodging of a complaint.    This matter has been dealt with in the context of the claim of Harassment and findings made in that regard.

The worker when asked about the specifics of his IR claim stated that he was seeking a recommendation that the employer in the future would investigate more thoroughly and embolden the training which surrounds its policies. 

The employer in submitting its defence to the allegations of harassment on grounds of race sought to rely on the defence in Section 14A (2) of the Employment Equality Acts and submitted that they conducted a thorough investigation into the complaint of harassment made by the worker. 

In examining this defence, I examined in detail the  process engaged in by the employer and concluded that the employer was not entitled to completely rely on the Section 14A(2) defence.   Accordingly, I found in favour of the worker and awarded appropriate redress.

Given that I have already made a decision in respect of the within matters albeit in the context of a claim under the Employment Equality Acts I am satisfied that these matters have already been dealt with a decision issued and redress awarded in relation to same.

Accordingly, I do not recommend in favour of the worker in respect of this matter.

I do not recommend in favour of the worker in respect of this matter.